Utah’s Bid to Take Back Its Land

There’s little doubt that defenders of states’ rights are feeling emboldened by the perception that the Obama Administration has overstepped its authority on issues ranging from the bank bailouts to health care reform. The New York Times recently published a good piece on how local lawmakers have harnessed this notion as a rallying cry, a phenomenon that manifested itself in a rash of lawsuits and sovereignty statements (Kansas has just joined the party). The court challenge state attorneys general filed last week to the Obama Administration’s health-care reform bill, which argued the bill’s individual mandate is unconstitutional, was the most high-profile example of this tension. But a story out of Utah provides what is perhaps a more interesting flash point.

On Saturday, Gov. Gary Herbert signed two bills authorizing efforts to invoke eminent domain as a way to reclaim land from the U.S. government, which owns more than 60% of Utah. Lawmakers say the gambit could lead to a court ruling that permits Utah to take back valuable parcels, including a coal-rich plateau, from the feds. Proceeds from developing those lands would be used to bankroll the state’s cash-strapped public schools. “This is the solution to being the lowest-funded education system in the nation,” Utah Rep. Ken Sumsion, a Republican, told the Salt Lake <i>Tribune</i> last month.

As the Wall Street Journal and the AP report, however, it’s highly unlikely that judges would back a bid to seize federal lands:

The goal is to spark a U.S. Supreme Court battle that legislators’ own attorneys acknowledge has little chance of success.

But Utah Attorney General Mark Shurtleff and other Republicans say the case is still worth fighting, since the state could reap millions of dollars for state schools each year if it wins.

Framing the lawsuit – for which the state has set aside $3 million – as a way to bolster sagging schools may be politically fraught, given that Utah recently slashed education funding by $10 million. As the Journal notes, lawmakers may be hoping to capitalize on the state-sovereignty movement’s momentum, as well as a widespread frustration throughout Western states over government encroachment and federal control of natural resources. In an interview with the Deseret News after he signed the bills, Herbert summarized this irritation succinctly: “When the donkey doesn’t move sometimes you need to hit him across the head with a two by four just to get their attention.” Utah voters will have to decide whether delivering that blow is worth $3 million.

"To exercise exclusive legislation in all cases whatsoever, over such
District (not exceeding ten miles square) as may, by cession of
particular states, and the acceptance of Congress, become the seat of
the government of the United States, and to exercise like authority over
all places purchased by the consent of the legislature of the state in
which the same shall be, for the erection of forts, magazines, arsenals,
dockyards, and other needful buildings;"

The Tenth Amendmend reads:

"The powers not delegated to the United States by the Constitution, nor
prohibited by it to the states, are reserved to the states respectively,
or to the people."

Based on the above it appears that the scope of Federal Land ownership is limited to a small list of items that does not include forest or other land reserves, and also be approved by the state legislature. Based on the 10th all other land purchases go to the state and people respectively.

The constitution seems to allow the central government to own land very purposes that support its enumerated responsibilities of defense by allowing arsenals, forts, magazines, dockyards, and other needful building for things like IRS offices.

Am I missing something here? In that national forest, national parks, and other land reserves are not in the list, how can they be constitutional?